Case 8:19-cv-01234-LKG Document 59 Filed 01/31/23 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil Action No. 19-cv-01234-LKG
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`Date: January 31, 2023
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`DAN L. BOGER, on behalf of himself and
`others similarly situated,
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`v.
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`CITRIX SYSTEMS, INC.,
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`Plaintiff,
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`Defendant.
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`MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION
`FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
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`I. INTRODUCTION
`Plaintiff, Dan L. Borger, brings an unopposed motion for preliminary approval of class
`action settlement to settle certain claims on behalf of himself, and a potential class of similarly
`situated individuals, against Defendant, Citrix Systems, Inc. ECF No. 56. The proposed
`settlement agreement and release (the “Settlement Agreement”) resolve alleged violations of the
`Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Maryland Telephone
`Consumer Protection Act (“MTCPA”), Md. Code Ann. Com. Law S 14-3201. ECF No. 56-1.
`No hearing is necessary to resolve this motion. See L. R. 105.6 (D. Md. 2021).
`
`For the reasons that follow, the Court GRANTS Plaintiff’s motion for preliminary
`approval of class action settlement.
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`II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
`A. Factual Background
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`The Plaintiff’s Claims
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`1 The facts recited herein are taken from the complaint and Plaintiff’s Motion for Preliminary Approval
`of Class Action Settlement. Unless otherwise stated, the facts recited herein are undisputed.
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`This civil action involves alleged violations of the TCPA, which prohibits, among other
`things, initiating a telephone call using an automated dialing system to telephone numbers
`assigned to a cellular telephone service; making any call for telemarketing purposes to any
`residential subscriber on the National Do Not Call Registry; and making any call for
`telemarketing purposes to any residential or wireless telephone subscriber, unless the caller has
`implemented the required minimum procedures for maintaining a list of persons who do not want
`to receive calls made by or on behalf of such person or entity. See 47 U.S.C. § 227(b)(1) and
`(c).2
`
`Plaintiff, Dan L. Boger, is an individual residing in Maryland who received five
`solicitation calls from Defendant to his cellular telephone number, despite previously placing his
`number on the National Do Not Call Registry. ECF No. 56 at 2. In this putative class action,
`Plaintiff alleges that that Defendant violated the TCPA by, among other things, placing
`unsolicited telemarketing calls to him and to the members of the putative class on residential and
`cellular telephone numbers. Id. at 3.
`Plaintiff commenced this putative class action on April 26, 2019. ECF No. 1. Thereafter,
`the parties engaged in informal discovery, and they participated in a mediation on April 26,
`2022, with Judge Jay Gandhi (Ret.). ECF No. 56 at 3. The Parties did not reach a settlement at
`that time. Id. And so, the parties engaged in further discovery over several months. Id. On or
`about November 17, 2022, the Parties tentatively agreed to a potential settlement (the
`“Settlement”) of this case. Id.
`
`The Settlement Agreement
`The proposed Settlement would establish a “Settlement Class” defined as follows:
`All persons or entities within the United States to whom Defendant or a
`third party acting on its behalf: (a) made one or more telephone calls to
`their cellular telephone number; (b) made two or more telephone calls
`while the call recipient’s number was on the National Do Not Call
`Registry; and/or (c) made one or more calls after asking Defendant or a
`third party acting on Defendant’s behalf to stop calling.
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`2 Plaintiff also alleges a claim under the Maryland Telephone Consumer Protection Act, Md. Code Ann.
`Com. Law §§ 14-3201, et seq.
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`Settlement Agreement at ¶ 1.29. The key provisions of the Settlement Agreement are
`summarized below.
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`First, the proposed Settlement Agreement would establish a non-reversionary $2,750,000
`Settlement Fund (the “Settlement Fund”), which will exclusively be used to pay: (1) cash
`settlement awards to settlement class members; (2) settlement administration expenses; (3) court-
`approved attorneys’ fees of up to one-third of the total amount of the Settlement Fund; (4)
`Plaintiff’s out-of-pocket expenses not to exceed $60,000; and (5) a Court-approved service
`payment to the Plaintiff of up to $10,000. ECF No. 56 at 5.
`
`The Settlement Agreement also provides that each settlement class member whose
`telephone number is on the Class List and who submits a timely and valid claim form shall be
`entitled to receive an equal pro rata amount of the Settlement Fund, after all settlement
`administrative expenses, service payment, and fees, costs, and expenses awards are paid out of
`the Settlement Fund. Settlement Agreement at ¶ 3.2.1.3 If approved by the Court, the Plaintiff
`will receive a service payment of $10,000 from the Settlement Fund (the “Class Representative
`Service Payment”). Id. at ¶ 2.1.3.
`
`Second, the Settlement Agreement provides that, upon preliminary approval, Plaintiff’s
`counsel will apply to the Court for a fees, costs, and expenses award in the amount of up to one-
`third of the total amount of the Settlement Fund, in addition to out-of-pocket expenses. Id. at ¶
`2.1.4. The Settlement Agreement further provides that any amount remaining in the Settlement
`Fund, after paying all authorized claimant awards, settlement administration expenses, and any
`fees, costs, and expenses award and service payment, will be distributed to a Court-approved cy
`pres recipient. Id. at ¶¶ 3.5, 3.6, 3.8.
`
`The Settlement Agreement further provides that all settlement administration expenses
`will be exclusively paid from the Settlement Fund. In this regard, the parties propose that the
`nationally recognized class action administration firm A.B. Data, Ltd. be the Settlement
`Administrator and implement the Class Notice and administer the Settlement. Id. at ¶ 1.28. The
`Settlement Administrator’s duties will include: (1) sending the class notice to the Settlement
`
`3 The Settlement Agreement also provides for a potential second distribution for any funds remaining due
`to uncashed settlement distribution checks to those Settlement Class Members that cashed their first
`distribution checks. Id. at ¶ 3.7.
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`Class pursuant to the Settlement; (2) responding to inquiries regarding the settlement process
`from persons in the Settlement Class; (3) processing and evaluating requests for exclusion and
`objections; and (4) issuing Authorized claimants’ individual allocated payment amounts.
`Specifically, the Settlement Administrator will send Postcard Notice via the U.S. Postal Service
`to the names and addresses of Settlement Class members identified as being the owners or users
`of the phone numbers contained on the Class List (the “Settlement Class Members”). Id. at ¶
`4.4.2. The Settlement Administrator will also administer a settlement website, through which
`Settlement Class Members will be able to obtain further details and information about the
`Settlement. Id. at ¶ 4.3. The anticipated administration costs are $509,617.90. See Misny Decl.
`at ¶ 6.
`
`Pursuant to the opt-out and objection procedures in the Settlement Agreement, persons in
`the Settlement Class will have the opportunity to exclude themselves from the Settlement or to
`object to its approval. Settlement Agreement at ¶¶ 6.1, 6.2. In addition, the Class Notice
`informs Settlement Class Members that they will have an opportunity to appear and to have their
`objections heard by the Court at a final approval hearing. Id. This notice also informs
`Settlement Class Members that they will be bound by the release contained in the Settlement
`Agreement, unless they timely exercise their opt-out right. Id. In this regard, the release
`provides that:
`
`Released Claims. Any and all claims, causes of action, suits, obligations, debts,
`demands, agreements, promises, liabilities, damages, losses, controversies, costs,
`expenses, and attorneys’ fees of any nature whatsoever, whether based on any
`federal law, state law, common law, territorial law, foreign law, contract, rule,
`regulation, any regulatory promulgation (including, but not limited to, any opinion
`or declaratory ruling), common law or equity, whether known or unknown,
`suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or
`contingent, liquidated or unliquidated, punitive or compensatory, as of the date of
`the Preliminary Approval Order, that arise out of or relate in any way to the
`Released Parties’ use of any telephone, cell phone, calling or dialing software or
`platforms, or an “automatic telephone dialing system,” or an “artificial or
`prerecorded voice” to contact or attempt to contact Settlement Class Members.
`This release expressly includes, but is not limited to, all claims under the Telephone
`Consumer Protection Act or any corollary state law.
`The Released Claims include any and all claims that were brought or could have
`been brought in the Action.
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`Id. at ¶ 1.23.; see also id. at ¶¶ 1.24, 1.25.
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`B. Relevant Procedural History
`Plaintiff commenced this putative class action on April 26, 2019. ECF No. 1. On
`December 14, 2022, Plaintiff filed an unopposed motion for preliminary approval of class action
`settlement, a memorandum in support thereof, a proposed settlement agreement and related
`documents. ECF Nos. 56 and 56-1.
`STANDARDS FOR DECISION
`III.
`A. Preliminary Approval Of Class Action Settlement
`
`The decision of “[w]hether to preliminarily approve a class action settlement lies within
`the sound discretion of the district court.” Stephens v. Farmers Rest. Grp., 329 F.R.D. 476, 482
`(D.D.C. 2019). In this regard, courts have recognized that “there is an overriding public interest
`in favor of settlement, particularly in class action suits.” Lomascolo v. Parsons Brinckerhoff,
`Inc., 2009 WL 3094955, at *10 (E.D. Va. Sept. 28, 2009) (citing Cotton v. Hinton, 559 F.2d
`1326, 1331 (5th Cir. 1977)). But, when the parties are seeking class certification and settlement
`at the same time, the proposed settlement agreement requires closer judicial scrutiny. Stephens,
`329 F.R.D. at 482 (internal quotations and citations omitted); see also Manual for Complex
`Litigation (Fourth) § 21.612 (2004).
`
`In this regard, the Court’s analysis of whether a proposed Rule 23 class action settlement
`is fair and reasonable involves a two-step process. First, the Court determines whether the
`settlement is “within the range of possible approval,” such that there is “probable cause to notify
`the class members of the proposed settlement.” Starr v. Credible Behav. Health, Inc., No. CV
`20-2986 PJM, 2021 WL 2141542, at *5 (D. Md. May 26, 2021) (quoting Horton v. Merrill
`Lynch, Pierce, Fenner & Smith, Inc., 855 F. Supp. 825, 827 (E.D.N.C. 1994)). “At this initial
`stage, the Court must make ‘a preliminary determination on the fairness, reasonableness, and
`adequacy of the settlement terms’ and ‘direct the preparation of notice of the certification,
`proposed settlement, and date of the final fairness hearing.’” Id. (quoting Manual for Complex
`Litigation § 21.632).”
`
`To determine whether it can give preliminary approval to the Settlement Agreement, the
`Court looks to the factors in Fed. Rule Civ. P. 23(e)(2). This Rule provides that the Court may
`find that a settlement is fair, reasonable, and adequate after considering whether:
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`(A) the class representatives and class counsel have adequately represented the
`class;
`(B) the proposal was negotiated at arm’s length;
`(C) the relief provided for the class is adequate, taking into account:
`(i) the costs, risks, and delay of trial and appeal;
`(ii) the effectiveness of any proposed method of distributing relief to the
`class, including the method of processing class-member claims;
`(iii) the terms of any proposed award of attorney’s fees, including timing of
`payment; and
`(iv) any agreement required to be identified under Rule 23(e)(3); and
`(D) the proposal treats class members equitably relative to each other.
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`Fed. R. Civ. P. 23(e)(2)(A)-(D). And so, “[p]reliminary approval should be granted when a
`proposed settlement is ‘within the range of possible approval,’ subject to further consideration
`after a final fairness hearing at which interested parties have had an opportunity to object.”
`Shaver v. Gills Eldersburg, Inc., No. 14-3977-JMC, 2016 WL 1625835, at *2 (D. Md. Apr. 25,
`2016) (quoting Benway v. Res. Real Est. Servs., LLC, No. 05-cv-3250-WMN, 2011 WL
`1045597, at *4 (D. Md. Mar. 16, 2011)).
`
`If the Court preliminarily approves the proposed settlement, the second step is a “fairness
`hearing to determine whether the settlement is ‘fair, reasonable, and adequate’ for all class
`members and thus should receive final approval.” Starr, 2021 WL 2141542, at *5 (quoting §
`21.634); see Grice v. PNC Mortg. Corp. of Am., No. 97-cv-3084-PJM, 1998 WL 350581, at *2
`(D. Md. May 21, 1998).
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`B. Class Certification
`
`To conditionally certify a class, the Court must confirm that this action comports with
`Rules 23(a) and (b) of the Federal Rules of Civil Procedure. See Starr, 2021 WL 2141542, at
`*3 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619–20 (1997)); see also Shaver, 2016
`WL 1625835, at *3 (“Where a class-wide settlement is presented for approval prior to class
`certification, there must also be a preliminary determination that the proposed settlement class
`satisfies the prerequisites set forth in Federal Rule of Civil Procedure 23(a) and at least one of
`the subsections of Rule 23(b).”). Rule 23(a) provides that:
`One or more members of a class may sue or be sued as representative parties on
`behalf of all members only if:
`(1) the class is so numerous that joinder of all members is impracticable;
`(2) there are questions of law or fact common to the class;
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`(3) the claims or defenses of the representative parties are typical of the
`claims or defenses of the class; and
`(4) the representative parties will fairly and adequately protect the interests
`of the class.
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`Fed. R. Civ. P. 23(a).
`
`To meet the numerosity requirement under Rule 23(a), there must be a showing that the
`proposed class is so numerous that “joinder of all members is impractical.” Starr, 2021 WL
`2141542, at *3 (quoting Fed. R. Civ. P. 23(a)). In this regard, the United States Court of
`Appeals for the Fourth Circuit has held that a class with more than 30 members generally
`satisfies this requirement. See id. (citing Williams v. Henderson, 129 F. App’x 806, 811 (4th Cir.
`2005)).
`
`The commonality requirement is satisfied when the prospective class members share the
`same central facts and applicable law. Id. (citing Cuthie v. Fleet Rsrv. Ass’n, 743 F. Supp. 2d
`486, 499 (D. Md. 2010)). In addition, to meet the typicality requirement, “[t]he claims need not
`be identical, but the claims or defenses must have arisen from the same course of conduct and
`must share the same legal theory.” Id. (citing Peoples v. Wendover Funding, Inc., 179 F.R.D.
`492, 498 (D. Md. 1998)).
`
`Lastly, “the adequacy-of-representation requirement centers on: (1) class counsel’s
`competency and willingness to prosecute the action and (2) whether any conflict of interest exists
`between the named parties and the class they represent.” Id. (citing Robinson v. Fountainhead
`Title Grp. Corp., 252 F.R.D. 275, 288 (D. Md. 2008)). And so, “[r]epresentation is adequate if
`the [Plaintiff’s] attorneys are qualified and able to prosecute the action on behalf of the
`class.” Id. (citing Cuthie, 743 F.2d at 499).
`
`Federal Rule of Civil Procedure 23(b)(3) also provides that:
`A class action may be maintained if Rule 23(a) is satisfied and if: . . . . (3) the court
`finds that the questions of law or fact common to class members predominate over
`any questions affecting only individual members, and that a class action is superior
`to other available methods for fairly and efficiently adjudicating the controversy.
`Fed. R. Civ. P. 26(b)(3). “Where the purported class members were subject to the same harm
`resulting from the defendant’s conduct and the ‘qualitatively overarching issue’ in the case is the
`defendant's liability, courts generally find the predominance requirement to be satisfied.” Starr,
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`2021 WL 2141542, at *4 (citing Stillmock v. Weis Mkts., Inc., 385 F. App’x 267, 273 (4th Cir.
`2010)). In addition, the Court must also consider:
`
`(A) the class members’ interests in individually controlling the prosecution or
`defense of separate actions;
`(B) the extent and nature of any litigation concerning the controversy already begun
`by or against class members;
`(C) the desirability or undesirability of concentrating the litigation of the claims in
`the particular forum; and
`(D) the likely difficulties in managing a class action.
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`Fed. R. Civ. P. 23(b)(3)(A)-(D); see also Shaver, 2016 WL 1625835, at *3.
`
`III. ANALYSIS
`In his motion for preliminary approval of class action settlement, Plaintiff requests that
`the Court: (1) grant preliminary approval of the Settlement; (2) provisionally certify the proposed
`Settlement Class; (3) appoint Plaintiff’s attorneys as Class Counsel; (4) appoint Plaintiff as
`representative of the Settlement Class; (5) approve the proposed Notice plan and Notice; and (6)
`schedule the final approval hearing and related dates as proposed. ECF No. 56. For the reasons
`discussed below, the proposed Settlement Agreement comports with the requirements of Rule
`23. In addition, the proposed notices are adequate and appropriate. And so, the Court
`PRELIMINARILY APPROVES the Settlement Agreement.
`
`A. Provisional Certification Of Proposed Settlement Class
`
`The Court must first determine whether it should preliminarily certify the Rule 23 Class.
`For the reasons stated below, the Court CONDITIONALLY CERTIFIES the Rule 23 Class in
`this matter.
`
`To conditionally certify a class, the Court must confirm that this action comports with
`Rule 23(a) and (b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 23(a)-(b); see Starr,
`2021 WL 2141542, at *3 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619–20
`(1997)); see also Shaver, 2016 WL 1625835, at *3 (“Where a class-wide settlement is presented
`for approval prior to class certification, there must also be a preliminary determination that the
`proposed settlement class satisfies the prerequisites set forth in Federal Rule of Civil Procedure
`23(a) and at least one of the subsections of Rule 23(b).”). Rule 23(a) provides that:
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`One or more members of a class may sue or be sued as representative parties on
`behalf of all members only if:
`(1) the class is so numerous that joinder of all members is impracticable;
`(2) there are questions of law or fact common to the class;
`(3) the claims or defenses of the representative parties are typical of the
`claims or defenses of the class; and
`(4) the representative parties will fairly and adequately protect the interests
`of the class.
`
`
`Fed. R. Civ. P. 23(a). The requirements of Rule 23(a) have been met in this case.
`
`First, the numerosity requirement under Rule 23(a) is satisfied here, because the proposed
`settlement class consists of at least 543,354 identifiable members. See Misny Decl. at ¶ 10; see
`also Starr, 2021 WL 2141542, at *3 (a class with more than 30 members generally satisfies the
`numerosity requirement.); Holsey v. Armour & Co., 743 F.2d 199, 217 (4th Cir. 1984) (there is
`no set minimum number of potential class members that fulfills the numerosity requirement.).
`
`Commonality is also satisfied, because Plaintiff has shown that the proposed Settlement
`Class Members “have suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
`350 (2011). Here, the proposed Settlement Class Members have suffered the same injury due to
`the Defendant, or a third party acting on its behalf, either: (1) making one or more telephone
`calls to their cellular telephone number; (2) making two or more telephone calls while the call
`recipient’s number was on the National Do Not Call Registry; and/or (3) making one or more
`calls after asking Defendant or a third party acting on Defendant’s behalf to stop calling. ECF
`No. 56 at 9.
`
`Plaintiff also persuasively argues that the Class Members share common questions of law
`and fact including: (1) whether a telemarketing and/or an autodialed call was made to Class
`Members; (2) whether Defendant had express written consent to make such calls; and (3)
`whether Defendant’s conduct was willful and knowing such that Plaintiff and the class are
`entitled to treble damages. Id.
`
`For similar reasons, the claims or defenses of the representative parties in this matter are
`typical of the claims or defenses of the Class Members, so that the typicality requirement is also
`satisfied. Starr, 2021 WL 2141542, at *3 (citing Peoples, 179 F.R.D. at 498) ( “[T]o meet the
`typicality requirement, the . . . claims need not be identical, but the claims or defenses must have
`arisen from the same course of conduct and must share the same legal theory.” ). As discussed
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`above, the claims of Plaintiff and the Class Members are based upon the same legal theory and
`these claims arise from the same course of conduct—automated telemarketing voice calls that
`were made to Plaintiff and the Class Members by Defendant. Given this, Plaintiff has also
`shown that his interests in this litigation are aligned with those of the Class Members.
`The Court is also satisfied that Plaintiff and his counsel will adequately represent the
`proposed Class Members. “[T]he adequacy-of-representation requirement centers on: (1) class
`counsel’s competency and willingness to prosecute the action and (2) whether any conflict of
`interest exists between the named parties and the class they represent.” Id. (citing Robinson, 252
`F.R.D. at 288). And so, “[r]epresentation is adequate if the [Plaintiff’s] attorneys are qualified
`and able to prosecute the action on behalf of the class.” Id.
`Here, Plaintiff and the Class Members will be represented by qualified and competent
`Class Counsel, who have extensive experience and expertise prosecuting complex class actions
`including class actions bought pursuant to the TCPA. Misny Decl. at ¶¶ 11-12. Notably,
`Johnathan P. Misny, Esq. has more than 12 years of legal experience, and Brian K. Murphy, Esq.
`has more than 28 years of legal experience. Id. at ¶¶ 14-16. Both of these attorneys are affiliated
`with the law firm Murray, Murphy, Moul, & Basil, LLP, a well-established securities litigation
`firm that has participated in numerous class action matters. Id.
`Class Counsel will also include Anthony I. Paronich, with the law firm of Paronich Law,
`P.C. See generally Paronich Decl. Mr. Paronich has more than 12 years of legal experience and
`he has been appointed as class counsel in more than 45 TCPA cases. Id. at ¶¶ 4, 8. Notably,
`these three attorneys have litigated this matter for more than three years. Id. at ¶ 9; Misny Decl.
`at ¶¶ 3, 5. And so, the adequacy requirement is satisfied in this case.
`The Court is also satisfied that the requirements of Rule 23(b) have been met in this case.
`If Rule 23(a) is satisfied, a class action may be maintained if the Court finds that the questions of
`law or fact common to class members predominate over any questions affecting only individual
`members, and that a class action is superior to other available methods for fairly and efficiently
`adjudicating the controversy. Fed. R. Civ. P. 23(b). “Where the purported class members were
`subject to the same harm resulting from the defendant’s conduct and the ‘qualitatively
`overarching issue’ in the case is the defendant’s liability, courts generally find the predominance
`requirement to be satisfied.” Starr, 2021 WL 2141542, at *4 (citing Stillmock v. Weis Mkts.,
`Inc., 385 F. App’x 267, 273 (4th Cir. 2010)).
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`In this case, Plaintiff has shown that common issues predominate. The key issues in this
`case are: (1) whether a telemarketing and/or voice call was made to Class Members; (2) whether
`Defendant had express written consent to make the calls; (3) whether Defendant’s conduct was
`willful and knowing such that Plaintiff and the Class are entitled to treble damages; (4) whether
`Defendant used an automated telephone dialing system to make the calls; and (5) whether
`Defendant had procedures in place to avoid calling numbers listed on the National Do Not Call
`Registry. ECF No. 56 at 11. Given this, the controversy at the heart of this litigation is whether
`Defendant made calls to numbers listed on the National Do Not Call Registry without the
`recipient’s consent. And so, any trial in this matter would focus on these common issues and the
`trial would not require individualized proof from Class Members, thereby satisfying the
`predominance requirement.
`Plaintiff has also shown that a class action litigation is superior to other available
`methods for adjudicating this controversy. Plaintiff’s counsel estimate that the average
`Settlement payment to each Class Member would be approximately $30.00 to $60.00. Given
`this, the individual claims of each Class Member would be too small to justify individual
`lawsuits. And so, the Court agrees with Plaintiffs that a class action would save litigation costs,
`by permitting the parties to assert their claims and defenses in a single proceeding. Gunnells v.
`Healthplan Servs., Inc., 348 F.3d 417, 426 (4th Cir. 2003) (class treatment superior where it
`lowers litigation costs “through the consolidation of recurring common issues”).
`For these reasons, the Court CONDITIONALLY CERTIFIES the Class pursuant to Rule
`
`23.
`
`Preliminary Approval Of Settlement
`B.
`The Court must next determine whether it can grant preliminary approval of
`the Settlement Agreement. For the reasons set forth below, the Court PRELIMINARILY
`APPROVES the Settlement Agreement.
`1. The Proposed Settlement Agreement Is Fair
`First, the Court is satisfied that the Settlement Agreement is fair. To determine whether
`it can give preliminary approval to the Settlement Agreement, the Court looks to the factors set
`forth in Fed. R. Civ. P. 23(e)(2), which provide that the Court may find that the Settlement is
`fair, reasonable, and adequate after considering whether:
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`(A) the class representatives and class counsel have adequately represented the
`class;
`(B) the proposal was negotiated at arm’s length;
`(C) the relief provided for the class is adequate, taking into account:
`(i) the costs, risks, and delay of trial and appeal;
`(ii) the effectiveness of any proposed method of distributing relief to the
`class, including the method of processing class-member claims;
`(iii) the terms of any proposed award of attorney’s fees, including timing of
`payment; and
`(iv) any agreement required to be identified under Rule 23(e)(3); and
`(D) the proposal treats class members equitably relative to each other.
`
`Fed. R. Civ. P. 23(e)(2)(A)-(D). In this regard, the Fourth Circuit has held that the Court
`specifically considers: (1) the posture of the case at the time the settlement was proposed; (2) the
`extent of discovery that has been conducted; (3) the circumstances surrounding negotiations; and
`(4) the experience of counsel in the area of class action litigation. In re Jiffy Lube Sec. Litig.,
`927 F.2d 155, 159 (4th Cir. 1991). These factors weigh in favor approving the Settlement
`Agreement at issue for several reasons.
`
`First, with regards to the current posture of this case, Plaintiff commenced this action in
`April 2019. ECF No. 1. The parties subsequently litigated this matter for three years before they
`reached the proposed Settlement. See Misny Decl. at ¶¶ 3, 5. Given this, the parties have had
`sufficient opportunity to understand the issues and the evidence in this case, and to reach a well-
`informed settlement.
`
`The Settlement Agreement also appears to be result of an arm’s-length negotiation
`between experienced attorneys who are familiar with class action litigation and the specific legal
`and factual issues of this case. Id. at ¶ 5. Notably, Plaintiff and Defendant have been
`represented by experienced counsel during the settlement negotiations. Id.
`
`The method for distributing relief to the Class Members is also fair and reasonable. The
`Settlement Agreement provides that the payments to eligible Class Members will be calculated
`and apportioned based upon a pro rata share of the net Settlement Fund. Settlement Agreement
`at ¶ 3.2.2. The Settlement Agreement also allows the eligible Class Members to elect to receive
`payment by either, check, PayPal, or any other electronic payment format recommended by the
`Settlement Administrator and agreed upon by the parties. Id. at ¶ 3.3. Lastly, as discussed
`above, Class Counsel are experienced in the litigation, certification and settlement of nationwide
`
`
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`Case 8:19-cv-01234-LKG Document 59 Filed 01/31/23 Page 13 of 19
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`TCPA class action matters. And so, for each of these reasons the Court is satisfied that the
`Settlement Agreement is fair.
`
`The proposed attorneys’ fee award is also reasonable, subject to further substantiation by
`Class Counsel’s submission for final approval. The Settlement Agreement provides that, upon
`preliminary approval, Class Counsel will apply to the Court for a fees, costs and expenses award
`in the amount of up to one-third of the total amount of the Settlement Fund, in addition to out-of-
`pocket expenses. Id. at ¶ 2.1.3. The Settlement Agreement further provides that any amount
`remaining in the Settlement Fund, after paying all authorized claimant awards, settlement
`administration expenses, and any fees, costs and expenses award and service payment, will be
`distributed to a Court-approved cy pres recipient. Id. at ¶¶ 3.5, 3.6, 3.8. “In the Fourth Circuit,
`‘the percentage-of-recovery approach is not only permitted, but is the preferred approach to
`determine attorney’s fees’ in class actions.” Starr, 2021 WL 2141542, at *5 (quoting Savani v.
`URS Pro. Sols. LLC, 121 F. Supp. 3d 564, 568 (D.S.C. 2015)). And so, the Court is satisfied
`that proposed attorneys’ fee award here is reasonable, because “[a] request for one-third of
`a settlement fund is common in this circuit and generally considered
`reasonable.” Id. (citing Kirkpatrick v. Cardinal Innovations Healthcare Sols., 352 F. Supp. 3d
`499, 505 (M.D.N.C. 2018)); see also Phillips v. Triad Guar. Inc., 2016 WL 2636289, at *6
`(M.D.N.C. May 9, 2016) (collecting cases on percentage-of-recovery fee awards and finding
`that, generally, attorneys’ fee awards between 25% and 33% are reasonable).
`
`Lastly, it also appears that the proposed payment of Plaintiff’s expenses and a service
`payment are reasonable. The Settlement Agreement provides that the Settlement Fund will be
`used to pay Plaintiff’s out-of-pocket expenses, not to exceed $60,000, and a Court-approved
`service payment to the Plaintiff of up to $10,000 (the “Class Representative Service Payment”).
`Settlement Agreement at ¶ 2.1.3. Given Plaintiff’s efforts to litigate this putative class action
`matter for more than three years, and that he has incurred expenses associated with brining this
`litigation, these payments appear to be reasonable.
`
`2. The Proposed Settlement Agreement Is Adequate
`
`The Court is also satisfied that the proposed Settlement Agreement is adequate. In
`determining whether a settleme